In various parts of the Country people who have filed for Bankruptcy are receiving phone calls from scam artists pretending to be calling from their attorney’s office. The scammer then tells them that they need to wire money somewhere quickly.

My clients should know that if the call doesn’t come from me, it isn’t from my office; because I don’t use staff. So, if it doesn’t sound like my voice — it isn’t from me.

However, everyone who has filed recently or is thinking about it, should be familiar with this scam. Here is a Press release from the National Association of Consumer Bankruptcy Attorneys (NACBA) with more information.

When you file for bankruptcy, you are required to provide a ton of information to the Court and the Trustee assigned to your case. Although it is true that no one is perfect, everyone makes mistakes, there are things about all of our lives that we frankly don’t know; none of that explains the multitude of phone calls I get from people who seem to know less about their lives than I do — and I haven’t even met them yet.

When I get a call from someone about filing for bankruptcy I begin by asking some basic questions — about how much debt, what kinds of debt (credit cards, medical bills, taxes, repo’s, pending law suits, student loans, child support), whether or not the person has been sued recently, have they filed their taxes, do they own their home, are they current on mortgages and car debt. I’m not looking for exact figures, but I do expect that people have a basic grasp on things.

When I get answers that don’t make sense, I start typing. I start with the Supreme Court’s online network that includes dockets for all Oklahoma District Courts. It is searchable by name. That shows me very quickly every lawsuit filed in the last ten or more years against someone (although, admittedly, when someone’s name is Tim Smith, this is less than helpful). Then, I check the County Assessor’s website for real property ownership records — again, searchable by name. Then, I check the County Clerk’s website for judgment liens, tax liens, transfer of real estate, mortgages and UCC-1 filing statements.

In just a couple of minutes I frequently know a lot more about the person I’m talking to then they seem to. I can’t count the number of people who tell me that they’ve never been sued — they are just having their wages garnished. Really? Sure, child support and some student loans can do a wage assignment or administrative garnishment without a lawsuit; but that is almost never the case. They just weren’t paying attention to the question, or they didn’t want to admit to it, or — something; and to a large extent it is my job to try and catch when a client isn’t paying attention and doesn’t answer something correctly or accurately; but there are limits to what I can do.

Ultimately, it is the client who signs bankruptcy papers. It is the client who can have his discharge denied for failure to disclose assets, or even liabilities. It is the client who can go to jail for bankruptcy fraud.

I understand that the events that frequently lead up to a bankruptcy filing are the kinds of things that get out of control and thinking about them can be at best depressing and at worst terrifying. Still, if you tell your lawyer about the garnishment summons your employer just got, your lawyer can help you get your case filed in time to stop it, notify the creditor to release it ASAP when the case is filed, possibly even help recover funds. If you tell your lawyer that your Mother has added your name to her house — to avoid probate, of course. In addition to helping you educate your Mother about better and safer options, your lawyer can help keep your Mother’s house out of your bankruptcy. If you tell your lawyer that you have been sued, your lawyer can help you determine whether or not you need to have judgment liens removed from your house.

Oh, and if you don’t tell your lawyer about these things, odds are very good that your Bankruptcy Trustee will find out about them. Of course, that will happen after the case is filed, and your hands will be pretty much tied.

So, if you find yourself thinking that you have more debt than you can pay. Stop. Take a deep breath — and think. Think about all the things you have been trying not to think about, because it is just all too foreign and overwhelming. Then, call a local bankruptcy lawyer for help; and be prepared to answer questions and ask questions until you are comfortable that you have disclosed everything you need to disclose.

For most people who file for bankruptcy the process looks a lot more administrative than it does judicial. Most people who file never see their Judge, for instance. No, the person who presides over the First Meeting of Creditors is NOT a Judge. Some standard rules of thumb – if there is no court room, no black robe and no standing when the person enters and leaves the room – you are probably not dealing with a Federal Bankruptcy Judge.

Just because most debtors never see them, doesn’t mean that the Judges aren’t staying busy. Bankruptcy litigation comes in two flavors: Adversary Proceedings and Contested Matters. An Adversary Proceeding is essentially a full-scale lawsuit filed within the context of a Bankruptcy case. It begins with a Complaint and a Summons, followed by an Answer, discovery, motions, evidentiary hearings and finally concludes with a trial.

Adversary Proceedings are required to determine the nature or extent of a lien, revoke a discharge or plan confirmation, object to a discharge, recover property of the estate, provide injunctive relief, declaratory relief or subrogation; and certain sales of property must be approved by an Adversary. Essentially anything else in the Bankruptcy Court where two people are arguing or disagreeing qualifies as a Contested Matter, which is quite useful; because in a contested matter you have full access to discovery and other litigation tools that are generally considered part of a lawsuit rather than just a motion hearing.

Some things can be the subject of either an Adversary Proceeding or a Contested Matter. A violation of the automatic stay, for instance, may be brought by either procedure. A violation of the discharge, however, generally is brought by a Contempt Citation, which is a Contested Matter.

So, what is the difference? Adversary Proceedings have greater procedural and due process protections built into them. They must be served like a lawsuit. They have a longer answer time. They have more structure to them which helps to manage greater complexity, a larger number of parties, more witnesses, more complicated issues. Contested Matters are procedurally more flexible. A Contested Matter may be a simple motion – motion with brief filed, fourteen days later a response with brief is filed, hearing set and heard generally in an hour or less. Of course, a Contested Matter may also have a long period of discovery, with related motions filed and culminate in a day or multi-day trial with lots of witnesses and exhibits. So, Contested Matters are inherently more flexible. The Court is expected to adapt procedures to fit the matter at hand. Adversaries are expected to be complex issues and so are treated that way automatically.

For something like a violation of the automatic stay, which may be brought in either form, I consider the following in making my choice: has the defendant appeared in the case, otherwise, the formal service procedures of the Adversary Proceeding will afford greater due process protections. How many facts will be in dispute? What is the nature of my client’s damages? How much post petition discovery will I want? How much time will I want to prepare the case? Even after considering all of these things, I may still file a case and have the Judge adapt the procedures for it as if it were the other. Judges can do that, and they will if they think it is necessary either for due process considerations, to protect the rights of a party or to make the case easier to manage.

So, there you have it. Bankruptcy lawyers may not empanel a jury too often (or ever), but they are still litigators.

There are a ton of debt management companies out there that will promise to consolidate your debt, or reduce your debt or give you ONE, LOW MONTHLY PAYMENT! All too often, they don’t work. Bankruptcy does, and there are really good reasons for that.

Remember two things. First, if it sounds too good to be true, it probably is; and second, there is a huge difference between a contract between you and a private company and Federal Law enforceable by the U.S. Court system with the assistance, if necessary, of the U.S. Marshals.

If you have tried a debt management plan or consolidation plan, one of those places that promises that it is every bit as good as a bankruptcy; only to find that the phone kept ringing, and the lawsuits kept coming? Well, first of all, actually read your contract. My guess is that if you sit down and actually read all the small print, you won’t like what you find. It also won’t promise results or relief. The problem with debt management or consolidation plans is that your creditors are not required to accept a deal that you cut with someone else. Think about it, if your creditors decline to go along with the plan, what is the debt management company going to do about it?

If creditors decide that the Bankruptcy Code doesn’t apply to them, the Bankruptcy Court’s orders are punishable by contempt of court. You won’t find that in the small print of a debt management contract.

Now, there are people who think that a Bankruptcy filing is too good to be true. It really isn’t for a variety of reasons. First of all, it is a public proceeding. Now, that doesn’t mean that your First Meeting of Creditors will be held in the middle of the local shopping mall. It does mean that your court file is a public record. Second, bankruptcy is an admission of failure. It hurts. It is hard to accept. It is hard to do. The for profit debt management companies know this. They play off of it. That is why people pay them and want to believe in them. Third, bankruptcy is about the worst thing you can do to your credit report (although, if you police your credit report post discharge, it won’t be nearly as bad as you expect). Finally, there is really good public policy in favor of our bankruptcy system.

One of many things that separates our economic system from most of the world is that we understand that not only does the freedom to succeed include the freedom to fail, the freedom to fail is necessary for the freedom to succeed. If you can’t afford to fail, you can’t afford to try. This makes more sense in a business context, but the consumer context is that someone with more debt than he can pay is not a contributing member of the economy. He is not taking care of himself and his kids. He isn’t saving for retirement and college. He isn’t out buying stuff, if he is too consumed with trying to pay for the past. Bankruptcy fixes this. That is serious economic policy that was recognized by our founding fathers, which is why the need for a Bankruptcy Code is one of the few areas of law specifically mentioned in the U.S. Constitution.

So, when a private company tells you that they are just as good as the United States Court system. Ask yourself, why you want to believe that.

Then, either contact Consumer Credit Counseling Services, which is one of the few legitimate debt consolidation companies that is non-profit and won’t misrepresent what they can and can’t do; or, admit that if you have too much debt to pay, you have too much to pay – consolidated or otherwise.

Most of my clients come to me concerned about losing stuff – house, cars, one woman was terrified that the Trustee would take her hopelessly spoiled Yorkie. Generally, those fears are not well founded – especially the Yorkie. Yes, sometimes debtors file for bankruptcy with assets that are not exempt, and they do have to turn them over to the Trustee. In Oklahoma that is fairly rare, and the Debtor should know it will happen before the case is filed and his lawyer should discuss with him ways to protect those assets. Still, there are times when filing anyway is still the best option.

Of course, there are other things that debtors lose when they file for bankruptcy – privacy, some pride, the ability to easily incur debt to start a business or buy a house. Although in many cases I think the greatest loss is one of a sense of self-sufficiency. For most people it is a great loss to ask the government for help – for protection, to use a Bankruptcy Code term.

These are things my clients think about. They don’t generally think about what other people are losing when a bankruptcy is filed. Sure, they know that their creditors won’t get paid. Of course, generally those creditors aren’t getting paid anyway; but for most institutional creditors, bankruptcy is an accepted cost of doing business. For smaller creditors and other people connected with a bankruptcy that isn’t as true; and a bankruptcy filing can be a huge loss.

I have recently undertaken the representation of some preferred stock holders in GMX Resources, Inc. GMX Resources, Inc. was a small, publicly traded, oil and gas company based in Oklahoma City that filed a Chapter 11 Bankruptcy two years ago. My clients are being sued to recover dividends that they were paid as stock holders in the period leading up to the GMX bankruptcy filing. You can find a discussion of the relevant cause of action, here. In most cases, my initial contact with these former stock holders is that they lost their entire investment in the company, they shouldn’t have to lose anything else! In fact, several people have told me they almost threw the Summons and Complaint in the trash and done nothing. If they had done so, the Trustee would have taken default judgments against them. Instead, I believe that I can successfully defend these cases.

Of course, on an emotional level I completely understand my clients’ initial reactions. One of the truths of human nature is that it is harder to give up something we have received than to have not received it in the first place or not gain it in the future. Once it is ours, it is OURS!.

On the other hand, if the preferred stock dividends at issue here are actually stock dividends (and I think they were more analogous to debt payments, but that is a conversation for another day), then they should not have been paid if it left the corporation unable to pay its bills. Stock dividends are to be paid out of surplus, not necessary operating funds. The creditors should have had access to that money before the bankruptcy was filed, instead, the creditors weren’t paid, the shareholders were; and the company filed for bankruptcy.

The company filed a bankruptcy to reorganize, but it wound up liquidating. Its general, unsecured creditors (people who had provided goods, services, loans) were owed over $81 MILLION when the case was filed. Most of those creditors will never be paid. Sure, there are a lot of institutional creditors for whom it is an expected part of doing business; but among the long list of creditors is a woman in a suburb of Oklahoma City doing business as a caterer. She was owed over $7,000 – money she will never see. To her, that must have been a catastrophic loss.

Then, there are the ongoing losses. GMX’s employees lost their jobs. The attorneys and accountants and contract firms who did business with GMX all lost a client and valuable source of business. The local economy lost part of its tax base. The business community lost a significant local player.

Everybody lost. That is the price of failure. In personal bankruptcies you have an offsetting win. A personal bankruptcy takes someone who has more debt than he can pay, and converts him into a participating member of the economy again. A personal bankruptcy takes someone who can’t care for himself and his family and converts him into someone who can. A personal bankruptcy creates the freedom to try and to succeed, because without the freedom to fail, no one could ever afford to try. One of the real benefits of the American bankruptcy system is that it isn’t punitive. It allows people to fail and try again. That is the beauty of our fresh start. If Walt Disney had not been able to file for Bankruptcy and try again, central Florida would look very different today!

Corporate bankruptcies can be wonderful things when a company successfully reorganizes. Jobs are saved, assets are made more productive, a valuable member of the business community is restored. Unfortunately, that doesn’t always work; and when it doesn’t – everybody loses.

Last week I wrote about stockholders in GMX Resources who were being sued as part of its bankruptcy for the recovery of dividends that they received prior to the bankruptcy filings. There are a ton of those cases filed. I haven’t spent a lot of time with the consolidated docket, but it looks like there were just under 200 Adversary Proceedings filed to recover property or payments of some kind in this Bankruptcy. About half of those were filed against owners of Preferred Stock, and I wrote about those last week. It appears that the other half were filed against people, or more frequently companies, who had received what are called Preferential Transfers; and I thought I this would be a good excuse to explain preferential transfers.

Preferential transfers are the product of two policies: 1. To make sure that when someone files for bankruptcy all creditors who have similar legal rights wind up getting treated essentially the same way; and 2. To encourage creditors to give debtors a bit of room to get back on their feet when they start to show signs of financial trouble.

Here are two examples of that. There is a natural inclination when you know you are sinking fast to want to repay loans from people you care about rather than those you might not. So, when that tax refund comes in, and you know you need to file for bankruptcy, are you going to repay the loan from your Mom or a credit card account? Well, yea, of course you are; but in terms of good policy, it isn’t fair for Mom to get better treatment than any other creditor.

This leads us directly into the next reason. If one creditor can get paid when no one else does and that creditor gets to keep the money, then at the first sign of trouble there will be a rush to squeeze money out of the Debtor – a virtual feeding frenzy if you will. Now, consider this in the context of a small business. Something bad happens. The business falls behind on paying its bills. At the first sign of trouble, all of its creditors take immediate steps to make sure that they get paid. The business collapses, because it lacks sufficient cash flow to keep the doors open.

Whereas, if the creditors had given the business 60 or 90 days to find its feet, the business might have stabilized, paid all its creditors, stayed in business, and continued providing an income for its employees and its owner. When you think about it, this kind of thing happens in the life of virtually all small businesses; and as it happens, creditors usually do give businesses time to get back on their feet – but they aren’t doing that at the risk that someone else will be less understanding and wind up with all the money and no one else will get anything. No. Creditors give debtors a chance to get back on their feet, because they know that if someone else doesn’t and the business files for bankruptcy, the money the greedy creditor got will be taken back and distributed out equally.

The tool for recovering those funds? Why an avoidance action to recover a preferential transfer, of course. This is a tool that bankruptcy trustees use frequently. If a Debtor’s wages are garnished in the 90 days before a bankruptcy? Well, that is one creditor getting paid and making sure no one else does. The trustee can take that money back. This is actually kind of nice when a debtor is being garnished and he owes recent taxes. When the trustee takes the garnished wages back, the first creditor he pays is the taxing authority.

There are defenses to preferential transfers, just like there are to fraudulent transfers. There are also times when it can be in a debtor’s best interests to have a Trustee recover preferential transfers. The nice thing about preferential transfers from the Debtor’s perspective is that the window for the transfer is generally quite short. Unless the transfer was made to (or benefited) an insider (like family), the transfer has to have been made within 90 days of the bankruptcy filing. That is a time period that can usually be waited out if necessary. Of course, if the transfer was to a family member, then the look back period is a year. That can be harder to wait out, although I have done it twice in the recent past.

The worst thing you can do about any type of transfer if you are getting ready to file for bankruptcy is to not tell your lawyer about it. I promise you, what he doesn’t know will hurt you.

A bunch of people are getting sued in an Oklahoma bankruptcy court, because they received dividends paid to them as holders of priority stock in GMX Resources, Inc. which subsequently filed for Bankruptcy. I have to admit that when I heard this even I scratched my head a bit. This case is so strange that it took me a while even to figure out who the Plaintiff, one John P. Madden as Trustee of the GMX Resources Creditors Trust, was and what the heck he had to do with this. It took me a little while longer to figure out why I think that these cases should all be defensible by the stock holders. My defense strategy is complicated, but I am making sure that it is cost effective for even relatively small stock holders. So, if you have received a Summons and Complaint from John P. Madden – contact me or another attorney well versed in fraudulent transfer defense soon. As is generally the case when you get sued, time is not on your side.

The cause of action involved in these cases is a poorly named concept, “fraudulent transfer”. There are a number of varieties of a fraudulent transfer, some of which involve actual fraud; but the most common (and the one at issue here) doesn’t usually involve real fraud. To boil it down to its most basic elements, this variety of fraudulent transfer is:

A transfer of an asset (cash dividend);

Made for less than fair consideration (i.e., akin to a gift, no value received in exchange);

At a time when the transferor (GMX Resources) was insolvent; and

Made within two years (four years under the State law Uniform Fraudulent Transfers law) of the time the transferor (GMX Resources) filed for Bankruptcy.

Basically, the idea is that you don’t want people transferring assets without getting fair value back in return (kind of, giving stuff away) if they can’t afford to pay their creditors. In the context of a typical consumer fraudulent transfer case, why should a debtor give his old car worth $4,000 – $5,000 away to a friend when he can’t pay his creditors? Shouldn’t he have sold the car and paid his bills? So, the Bankruptcy Code allows for his Bankruptcy Trustee to get the car back, sell it and distribute the money out to the creditors. That fact scenario seems less offensive – unless, of course, you are the friend who was given the car!

What makes fraudulent transfers so much fun is that it is relatively easy for a Trustee to make what is called a prima facie case that the transfer should be avoided. Basically, that means a case that on its face is sufficient to support the cause of action. That is not the same thing as saying that the Trustee should automatically win. There are a number of defenses to fraudulent transfer actions, several of which I think are applicable to the case at bar.

One of the things that I think the Trustee is counting on in this case is that at first blush it looks like defending these cases is going to be outrageously expensive. I respectfully disagree.

Any lawyer who has been out of school for more than six months will tell you that any time you walk into a courtroom anything can happen. There are never any guaranties, and generally both sides are equally convinced that they are absolutely right. Still, there are some facts in this case that make the Trustee’s argument less than compelling; and if you have been sued or if you represent someone who has – give me a call. My contact information is in the right hand column.

A bankruptcy filing automatically stays (or temporarily stops) all collection activity against the debtor or property of the debtor; and that includes virtually all lawsuits involving the debtor. That is the easy answer. Yes, a bankruptcy filing will stop that lawsuit against you! It just isn’t always the whole answer.

Most of the time when people call they are asking about a simple collection case – an old credit card, medical bills, maybe the balance due after a repossession. In those cases a bankruptcy filing stays the lawsuit; and when the discharge is entered a few months later, the lawsuit is stopped for good. That answer is accurate for the vast majority of callers. So, if you are worried about a simple collection case, a Bankruptcy will fix it.

The problem comes when whomever answers the phone in the law office doesn’t ask enough questions. If the lawsuit isn’t a simple collection case, for instance, if the person calling is being sued by a former employer for stealing or embezzling money. If the lawsuit is alleging any type of fraud. If the lawsuit is alleging intentional and willful injury to property. If the lawsuit is a paternity action or an attempt to collect past due child support or alimony. Those lawsuits won’t just go away, although the Bankruptcy filing will slow them down some. The worst scenario, though, is a case that looks look like a simple breach of contract case or maybe simple negligence, it may be between former business partners or friends; but the case has gotten emotional and angry and it has become more about a pound of flesh than recovering specific economic damages. In other words, the worst case scenario is a lawsuit that has started to look more like a divorce than normal litigation.

In those cases the answer is still correct that a Bankruptcy filing will stay the lawsuit – it just might not end it, and it really might not stop the fight.

The Bankruptcy Code includes a list of things that are excepted from the Debtor’s discharge. That means that even though the Automatic Stay might stay the problem, when the stay is replaced by the discharge, this type of problem will still be there – waiting. The most common of these are debts incurred shortly before the bankruptcy was filed (presumably with the intention of filing bankruptcy and not paying it), student loans, recent taxes, child support or alimony.

Some of these require that something called an Adversary Proceeding be filed within the bankruptcy. Some of them don’t; and some times the creditor may just cause other problems within the bankruptcy. Stay tuned for more on this subject. I will tag these posts as “persistent creditors” to make them easy to find.

I’m a bankruptcy lawyer, and I practice in the Bible belt. That isn’t really a fair statement. Practicing law isn’t really what I do. It is who I am. In the words of Micah I am called to seek justice. Although, I can’t tell you how many times I have been grateful that I’m called to “seek” justice – not necessarily to find it.

Still, when Rachel Held Evans sent out a call for volunteers to help launch her latest book, Searching for Sunday, I volunteered. Rachel’s books are about finding grace in the midst of condemnation and hope flying in the face of everything you thought you knew – and my clients need that.

He remembered that what makes the gospel offensive isn’t who it keeps out, but who it lets in. Nothing could prevent the eunuch from being baptized, for the mountains of obstruction had been plowed down, the rocky hills had been made smooth, and God had cleared a path. There was holy water everywhere. Searching for Sunday.

My clients need to be reminded that bankruptcy was God’s invention. If you don’t believe me, try reading Leviticus. Then, over the course of a Testament and a millennium or so (give or take) he refined this concept of forgiveness until it became a concept called grace. The sad thing is that the clients who most need to hear this are the very clients who wind up in my office because they insisted on taking care of their children instead of paying their credit cards – or, to quote Rachel:

I became a stranger to the busy, avuncular God who arranged parking spaces for my friends and took prayer requests for weather and election outcomes while leaving thirty thousand children to die each day from preventable disease. Searching for Sunday.

I spent a long time trying to come up with a way to elegantly tie a post about this book with my usual law office centric kind of stuff. I gave up. If you are here reading this, you need to hear about acceptance and grace and questions and doubt and love and belonging and grace and forgiveness.

An African American man in a wheelchair followed and brought the house down when he approached the mic, waited a moment, and declared, “I’m black. I’m disabled. I’m gay. And I live in Mississippi. What was God thinking?” Searching for Sunday.

Rachel Held Evans has documented her journey from an evangelical, I’ve got all the answers, unquestioning faith to what I consider to be a more mature faith. This book is the second half of that journey, and in this book, she is trying to get her head around the concept of sacraments and at the same time find a church community that resonates with the answers she is looking for.

The church is God saying: “I’m throwing a banquet, and all these mismatched, messed-up people are invited. Here, have some wine.” Searching for Sunday.

Her answers aren’t my answers, and they won’t be your answers. The questions and the journey, though, are universal.

All we have is this church—this lousy, screwed-up, glorious church—which, by God’s grace, is enough. Searching for Sunday.

Trust me. I get it. Lots of us are afraid to file our tax returns – well, ok, afraid to prepare them may be closer to the truth; but, trust me, I get it.

– and it just got worse.

Not filing your taxes has always been bad. Filing late has always had some consequences, but most of them were manageable. Now, there is a new one.

In the last week of 2014 the 10th Circuit Court of Appeals handed down an opinion agreeing with an earlier decision from the 5th Circuit. So far, they are the only two circuits to hear this particular issue; and they agree. This is not good.

Here is the problem. Generally, speaking income taxes are dischargeable in a bankruptcy proceeding provided that they meet certain requirements. Like with anything involving either the Bankruptcy Code or the Tax Code (let alone both), there are more rules, limitations and exceptions to the basic rules than holes in Swiss cheese. Still, generally speaking, if the taxes meet certain age tests they are dischargeable in a bankruptcy filing – any chapter. Well, the 10th Circuit, following the 5th, has added a new wrinkle.

According to these Courts if the returns were filed so much as a day after they are due, the taxes on those returns are never dischargeable in a Bankrutpcy. Of course, if they are filed before the expiration of a properly granted extension, they are not late. If they are filed after the extension expires, however, or if no extension is granted; then, we have a whole new problem.

I have a case right now where a client has filed a bankruptcy, and taxes are a major part of the debt. I just went through every one of her tax transcripts. One of those returns was filed late. Anywhere inside the 5th or 10th Circuits the taxes on that return are not only not dischargeable in this Bankruptcy – they will never be eligible for a discharge. Oh, and the date on that return? Filed less than two weeks after April 15, and no request for extension was filed.